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82 Mo. L. Rev. 643 (2017)
Forcing People to Choose Is Paternalistic

handle is hein.journals/molr82 and id is 665 raw text is: Forcing People to Choose Is Paternalistic Cass R. Sunstein ABSTRACT It can be paternalistic to force people to choose. Often people do not wish to choose, but both private and public institutions ask or force them to do so, thus overriding their wishes. As a result, people's autonomy may be badly compromised and their welfare may be greatly reduced. These points have implications for a range of issues in law and policy, suggesting that those who favor active choosing, and insist on it, may well be overriding people's preferences and val- ues, and thus running afoul of John Stuart Mill's Harm Principle (for better or for worse). People have limited mental bandwidth, and forc- ing choices can impose a hedonic or cognitive tax. Sometimes that tax is high. I. INTRODUCTION When you enter a taxicab in a large city, and ask to go to the airport, you might well be asked this question: What route would you like me to take? If you are like many people, you will not welcome that question. You might even hate it. After all, it is the business of the driver to know how to get to the airport, and in any case the driver almost certainly has access to a GPS device. For you, the question - asking you to choose - is a kind of mental tax, cognitive for sure (because of the need to think) and possibly Robert Walmsley University Professor, Harvard University. I am grateful to Thomas Lambert and the editors of the Missouri Law Review for hosting a superb conference on nudging and libertarian paternalism in October 2016; the discussions much informed my treatment here. Special thanks to Bruce Ackerman, a terrific commentator and col- league for several decades, for suggesting, back in 2014, that I produce this essay. It took a while. Thanks too to Elizabeth Emens, Eric Johnson, George Loewenstein, Eric Posner, Ric- cardo Rebonato, Lucia Reisch, and Adrian Vermeule for valuable comments on a pre- vious draft. I am also grateful to participants in a legal theory workshop at Yale Law School and to audiences at Dartmouth College for excellent suggestions and to Mat- thew Lipka for superb comments and research assistance. I have drawn on previous presentations and some of the material presented here appears, in earlier form, in CASS R. SUNSTEIN, CHOOSING NOT To CHOOSE: UNDERSTANDING THE VALUE OF CHOICE (2015); the goal of this essay is to present a simple, significantly clarified and revised, expanded, self-contained version of one argument in that book.

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